Hayes v. Price

• Decision Date: 29 June 2010
• Docket Number: No. SC 90054.,SC 90054.
• Citation: 313 S.W.3d 645
• Parties: Ronald Joe HAYES, et ux., Appellants, v. Trisha G. PRICE, Respondent.
• Court: Missouri Supreme Court

313 S.W.3d 645

Ronald Joe HAYES, et ux., Appellants, v. Trisha G. PRICE, Respondent.

No. SC 90054.

Supreme Court of Missouri, En Banc.

May 25, 2010.

Rehearing Denied June 29, 2010.

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David W. Ransin P.C., Springfield, for Appellants.

John Mullen and Nikki Cannezzaro, Franke, Schultz & Mullen P.C., Kansas City, for Respondent.

PATRICIA BRECKENRIDGE, Judge.

Ronald Joe Hayes appeals from a judgment in his favor against Trisha G. Price for injuries he suffered when his motorcycle collided with her automobile. The collision occurred at an intersection when Ms. Price made a left-hand turn across the lane in which Mr. Hayes was traveling straight. On appeal, Mr. Hayes asserts that the trial court erred in submitting to the jury a comparative fault instruction for his "failure to keep a careful lookout" because Ms. Price failed to present evidence to support the submission. He also contends that the trial court erred by not awarding him prejudgment interest when he complied with the statutory requirements. Because Ms. Price did not present evidence that Mr. Hayes was able to take evasive measures to avoid the accident, the trial court erred in submitting the comparative fault instruction. The trial court did not err in denying Mr. Hayes's request for prejudgment interest; his offer of settlement did not comply with section 408.040.2¹ because it included a demand for production of documents and statements from third parties. The trial court's judgment is reversed, in part, and affirmed, in part, as modified.

Factual and Procedural Background

The pertinent facts are viewed in the light most favorable to the jury's verdict. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). On September 25, 2004, Mr. Hayes was driving his motorcycle in Joplin with his friend and frequent motorcycling companion, Greg Cook. It was a clear, sunny day. Mr. Hayes and Mr. Cook were traveling southbound on Maiden Lane, a four-lane road that does not have a turn lane. As they approached the intersection of Maiden Lane and 13th Street, Mr. Cook was riding in the lead position in the left side of the curb-side lane. Mr. Hayes's motorcycle was staggered behind Mr. Cook's motorcycle in the right side of the curb-side lane. As they approached the intersection, a Ford Bronco was in the left lane of southbound Maiden Lane, waiting to turn left to go east on 13th Street.

Meanwhile, Ms. Price was traveling north on Maiden Lane. She saw the two southbound motorcycles as they approached 13th Street. At the intersection, she stopped in the left lane, intending to turn left to go west on 13th Street. The southbound Bronco created a "blind zone," blocking Ms. Price's view of Mr. Hayes and Mr. Hayes's view of Ms. Price. Mr. Cook, the lead rider, observed that Ms. Price was beginning to turn in front of him, so he signaled to her as he passed through the intersection in an effort to alert her that another motorcycle was following behind him. Although Ms. Price saw Mr. Cook's signal, she misconstrued his warning gesture. She stopped her vehicle to let him go through the intersection and then resumed her turn. As she turned, she drove into the left side of Mr. Hayes's motorcycle. Mr. Hayes suffered severe injuries to his hip and leg from the collision.

At the time of the collision, both Mr. Hayes and Ms. Price had a green light. Mr. Hayes had the right-of-way, however, because he was proceeding straight through the intersection on the green light, whereas Ms. Price was turning left. Mr. Hayes was traveling at approximately 30 miles per hour in a 35 miles per hour zone. Mr. Hayes testified that as he approached the intersection, he was focused on a car stopped on 13th Street because he was concerned the car was going to make a right turn onto Maiden Lane in front of him. Mr. Hayes did not see Ms. Price until just before impact.

Before filing a lawsuit, Mr. Hayes sent Ms. Price a demand letter, pursuant to section 408.040.2, for the purpose of qualifying for prejudgment interest. Mr. Hayes offered to release Ms. Price from any liability if she paid him $325,000 and produced a number of documents and sworn witness statements from herself and her parents. The demand letter was sent by certified mail and the offer kept open for 60 days. Ms. Price did not accept the offer. Mr. Hayes filed suit, and the case went to trial on February 14, 2006.

Mr. Hayes submitted his case to the jury on the theory that Ms. Price was negligent for failure to yield. Ms. Price submitted a comparative fault instruction, failure to keep a careful lookout under MAI 17.05, to which Mr. Hayes objected. Mr. Hayes also moved to exclude any matter regarding comparative fault. The trial court overruled his motion and allowed Ms. Price to submit the comparative fault instruction to the jury.

The jury returned a verdict in favor of Mr. Hayes in the amount of $625,000 and apportioned 20 percent of the fault to Mr. Hayes and 80 percent of the fault to Ms. Price. The jury found in favor of Ms. Price on Mr. Hayes's loss of consortium claim. As a result of the apportionment of 20 percent of the fault to Mr. Hayes, the trial court reduced Mr. Hayes's damages award by $125,000. The trial court overruled Mr. Hayes's motion for prejudgment interest.²

Mr. Hayes appeals. First, he claims that the trial court erred in submitting the comparative fault instruction to the jury because Ms. Price failed to present evidence to support the instruction's submission. Second, he contends that the trial court erred by not awarding him prejudgment interest because he complied with the requirements of section 408.040.2. After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

Submission of Comparative Fault Jury Instruction

Mr. Hayes first claims that the trial court erred in submitting jury instruction No. 10, a comparative fault instruction for failure to keep a careful lookout based on MAI 17.05. He asserts that there was no substantial evidence to support submission of the instruction to the jury.

Whether a jury was properly instructed is a question of law this Court reviews de novo. Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). This Court reviews the record in the light most favorable to submission of the instruction. Id. Any issue submitted to the jury in an instruction must be supported by substantial evidence "from which the jury could reasonably find such issue." Kauzlarich v. Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995). "Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case." Powderly v. S. County Anesthesia Assocs. Ltd., 245 S.W.3d 267, 276 (Mo.App.2008). If the instruction is not supported by substantial evidence, there is instructional error, which warrants reversal "only if the error resulted in prejudice that materially affects the merits of the action." Bach, 257 S.W.3d at 608.

In this case, the trial court submitted to the jury a "failure to keep a careful lookout" comparative fault instruction. The essence of the "failure to keep a careful lookout" claim is a failure to see and a failure to act. Lovelace v. Reed, 486 S.W.2d 417, 418-19 (Mo.1972).

Alleged negligent failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that, in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle . . . in time thereafter to have taken effective precautionary action.

Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970). The inquiry is two-fold: if the driver was keeping a careful lookout, could the driver have seen the danger; and, if the driver could have seen the danger, did the driver have the ability to take some precautionary measure such as veering, utilizing a horn, or slowing speed to prevent the accident? The evidence must support a finding that a driver had the means and ability to have avoided a collision. Thurman v. Anderson, 693 S.W.2d 806, 807 (Mo. banc 1985). "Means and ability include sufficient time and distance considering the movement and speed of the vehicles." Id.

Ms. Price argues, in support of the trial court's submission of Mr. Hayes's comparative fault, that if Mr. Hayes had been keeping a careful lookout, he would have seen impending danger and he could have slowed down or taken some action to avoid the collision. Viewing the record in the light most favorable to submission of the instruction, the evidence was that Mr. Hayes had the ability to observe Ms. Price's vehicle approach the intersection, before her vehicle was hidden in the cone-shaped blind zone created by the Bronco. Even if Ms. Price had her turn signal activated at this time, however, Mr. Hayes had a green light and the right of way as he approached the intersection, and he was justified in assuming that Ms. Price would yield to oncoming traffic until she "gave positive indication to the contrary." See id. at 808. Prior to entering the blind zone, there was no evidence that Mr. Hayes had information to alert him that he should not proceed through the intersection at his speed of 30 miles per hour.

The evidence was that, as Mr. Hayes and Ms. Price neared the intersection from opposite directions, the Bronco in the left lane on southbound Maiden Lane created a blind zone, obstructing the view of both Mr. Hayes and Ms. Price.³ Ms. Price initially stopped at the intersection. She began to turn only after Mr. Hayes's view was obstructed by the Bronco. There is no evidence that at the point that Mr. Hayes exited the blind zone, when he would have seen Ms. Price making a turn if he had been keeping a careful lookout, there was sufficient time for beeping, swerving, or decelerating that would have...